essay questions

Consequential Courts

JUDICIAL ROLES IN GLOBAL PERSPECTIVE

Edited by

DIANA KAPISZEWSKI University of California, Irvine

GORDON SILVERSTEIN Yale Law School

ROBERT A. KAGAN

University of California, Berkeley

^ CAMBRIDGE UNIVERSITY PRESS

i6

The Mighty Problem Continues

Martin Shapiro*

In 1979, Mauro Cappelletti entitled a pioneering comparative study "The Mighty

Problem" of constitutional judicial review. Since then, review has become even

mightier and even more problematic in a number of ways, as noted in the Introduc-

tion to this volume and its subsequent chapters. Initially, the problem was largely

seen as a normative one about the compatibility between majoritarian democracy

and a judicial veto power over legislation. Put somewhat differently, a strong measure

of judicial independence might be a prerequisite to judicial review as an instrument

for limiting government and protecting rights. Such review necessarily involved

some judicial lawmaking. In a democracy, lawmakers should be accountable to the

electorate. How could judicial independence and accountability for lawmaking be

accommodated to one another? At a more rough-and-ready empirical level, when,

where, and why did the powers that be - whoever they might be - allow a handful

of judges without purse or sword to get away with making major policy decisions?

For as this volume insists, judicial review courts are often consequential.

Let us suppose that we wished to construct a causal model or theory for relatively

long-term, successful judicial review. By success, I mean a reviewing court with

some decisions entailing substantial changes in public policy that are obeyed by

other policy makers and implementers. Although this volume seems to yearn for a

developmental model, suppose instead we attempted a more static model to state in a

parsimonious way the necessary and/or sufficient conditions under which relatively

long-term, successful judicial review would, or at least could, flourish.

At the time of World War II, three countries had successful constitutional judicial

review, or something close to it: the United States, Canada, and Australia. (British

statutes served as surrogates for constitutions in the two dominions.) Thus, the

number of possible necessary and/or sufficient preconditions for review appeared

to be few: democracy, the common law tradition, a written constitution (with or

* James W. and Isabel Coffroth Professor of Law (Emeritus), Berkeley Law, UC Berkeley.

The Mighty Problem Continues 381

without a Bill of Rights), and federalism. Given that Switzerland also had a form

of review, federalism seemed the most prominent candidate for both necessary and

sufficient condition.

Subsequent to World War II, the number of polities, both natural and transna-

tional, that adopted judicial review multiplied dramatically. As the multiplication

occurred, the set of candidates for necessary and/or sufficient preconditions for

review also multiplied dramatically. At first, federalism seemed to hold up pretty

well even as a necessary condition. The postwar German and Italian Constitutions

contained strong federal elements and provided for review. Specifically, free-trade-

enforcing judicial review occurred in the new European Economic Communities

(now European Union [EU]) institutions and World Trade Organization and North

American Free Trade Agreement judicial panels. Alas, we have also learned that

formal federalism alone does not assure successful judicial review as the new experi-

ence of the Russian federation and even the new Canadian constitutional experience

has shown, and the Mexican experience has long indicated. (Quebec fairly often

negates review on language questions.) Only federalisms to which all members are

strongly committed may be sufficient causes of successful review. More importantly,

a number of unitary states such as France have introduced review. So federalism

does not appear to be a necessary condition for review.

As to the other early identified preconditions, the whole message of this volume

is that as the numbers of review polities increases, the necessity and sufficiency

of each suggested independent variable fades away. At least one state without a

written constitution, Israel, has judicial review. The UK, famously without a written

constitution, has accepted European Court of Justice and European Court of Human

Rights Review. This volume, as Ginsburg's contribution (Ch. i in this volume)

immediately points out, presents review in both democratic and democratizing

countries. In some of them at least judicial review may be as much or more a cause

as an effect of democracy - South Africa being perhaps the best example (Klug, Ch. 3

in this volume). Other contributions to the volume remind us that effective judicial

review, in an arguably perverted form, can even exist in very shaky democracies and

nondemocratic regimes.

When German and Italian review came along, they could be attributed to fed-

eralism, but such an attribution would, even then, have seemed deliberately blind

to the historical experience out of which they came. Surely judicial developments

in those countries were more motivated by a concern for protecting individual or

human rights than free-trade federalism. The new Canadian Constitution, whose

adoption was debated largely in terms of federalism, nevertheless contained rights

provisions that have subsequently generated a lot of review. Similarly, the new

French Constitution was centrally about the division of powers between the presi-

dency and prime minister - Cabinet and Parliament. It did not even contain a Bill

of Rights, but eventually the French Constitutional Council so felt the need of one

for judicial review purposes that it invented one and shick it in the Constitution.

382 Martin Shapiro

The now-global religion of human rights, with or without written bills ofri;

surely takes center stage among the putative causes of review.

Similar to federalism, constitutional division of powers among branches or in^.;

tutions of central government at first glance seems a promising candidate - or

least one of an assortment of alternative necessary conditions - for successful revi<

Indeed, the recent tendency toward the constituting ofquasi-presidential systems;

which lawmaking power is divided between legislature and president, a la Francai

might seem to necessitate a reviewing court to police the problematic dividing Id

However, active policing by the judiciary of the boundary between legislative and

executive branches would repeatedly pit the reviewing court against one or the

of the two very-much-more powerful institutions of the central government, and

often against the major political party or coalition of parties that controlled it.

The relatively low profile of the U.S. Supreme Court in reviewing a conventional

division of powers Executive-Legislature format and the Chilean Court in the quasi-

presidential format tends to sap our confidence in division of powers as a condition

of successful review. The Argentine experience might also be cited. However, to the

extent that separation of powers often leads to divided government that cannot easi]

pass legislation or take other action to "correct" a decision of the constitutional court,

separation of powers may facilitate review by undercutting the retaliatory capacil of the so called political branches.

So, more and more constitutional judicial review shows up in more and more

places. For scholars, the result is that more and more variables in more and more

combinations suggest themselves as causes or preconditions or independent variables

generating review. This volume was inspired by and contributes to the difficulty of

arriving at a parsimonious theory of the origins and maintenance of successful con-

stitutional judicial review. Indeed, it seeks to complicate the question by subdividing

'judicial activism" into a variety of different roles in governance.

The origins of or motivations for the establishment of constitutions and review is

much debated. That debate remains of great historical interest. In the contemporary

world, however, every new country must have a constitution, just as it must have a

flag and a national anthem. Today, the origin of constitutions, similar to the pockets

on jeans, is a matter of mere fashion. A few years ago, the same thing might be said of

the origins of Bills of Rights within constitutions. Today, that fashion is being rivaled

in some parts of the world by the constitutional insertion of Islam - which may or

may not be antithetical to rights. So the question now is much less why do polities

proclaim constitutions and bills of rights, and much more why, when, where, and

how over time some constitutions actually limit government and protect rights. It

may well be - as some contributors to this volume and others have argued - that

constitutions, cum bills of rights, cum judicial review, were instituted in some politics

because then-dominant political elites saw a constitution as a means of insuring their

own future political and economic interests. In other polities, however, they have

been instituted simply as declarations of nationhood. In both varieties, the crucial

The Mighty Problem Continues 38?

luestion is under what conditions the constitutions, cum rights, cum review actually

work to preserve interests by limiting government. The examples in which they don't

work are myriad and dissolve into the broadest questions of when democratization

works or doesn't work. Indeed, even where democratization works, constitutions,

cum rights, cum review may not serve the interests they were intended to serve. For

instance, the Chilean constitutional protections of private property may not have

achieved the capitalist glories intended by the Chicago boys, and whether the South

African Constitution will protect white agricultural property remains touch and go.

THE COSTS AND BENEFITS OF REVIEW

Nearly every contribution to this volume addresses a central question of constitu-

tional judicial review; sometimes directly, sometimes by implication. No matter

what its origins in a particular polity or the intentions of its originators, why are

so many people in so many countries willing to allow major policy decisions to be

made by a handful of (usually lawyer) judges? The answer for authoritarian states is relatively easy and rests on well-developed

theories of complex organizations. Large, multi-task organizations such as govern-

ments depend on hierarchy and specialization. Judiciaries are specialized hierarchies

designed to provide a social service that the ruled want - conflict resolution - but to

provide that service in a way that communicates and enforces central government

policies at grassroots levels and communicates grassroots concerns to the central

government. Courts are particularly good instruments for central regime control

over its localities not only because they provide a desired service to the governed but

because a whole mythology of courts and judges disguises their control functions

from those being controlled.

The cost to authoritarian regimes of exercising this kind of control, however, is

that, in order to maintain the myth, the regime must achjally grant a certain degree

of independent authority to the courts. A crucial question for future research is:

when can and will judges exploit the appearance of independence granted them

by authoritarian regimes to actually place limits on those regimes, limits that the

regimes may feel obliged to obey in order to keep up the appearance of judicial

independence that remains useful to them, for instance in their attempts to attract

foreign investment? Whether a democratic, democratizing, or nondemocratic regime, the initiation

and continuing support of an active constitutional judicial review court entails

both benefits and costs - what I have referred to elsewhere as the "junkyard dog ^

phenomenon. Such a court may provide fierce long-term protection of whatever j

interests (rights, free trade, and divisions of power) it is set to guard,

sometimes biting the very interests that set it loose Presumably those interests will let

it run free, so long as they deem its guard functions worth the bites. Thus,

necessary condition for successful constitutional judicial review is that the coui

384 Martin Shapiro

must have sufficient strategic sense to fashion its decisions in such a way that in

and over time their benefits exceed their costs for the political regime in which the

court is imbedded. This key variable is so difficult to measure and itself so variab c

over time for any given court that it becomes nearly impossible to propose a relath

specific predictive model of the conditions necessary for successful review. Indeed.

such efforts tend to become circular, with successful courts said to have exercised

good strategies and unsuccessful ones not having done so.

SUPPLYING AND DEMANDING REVIEW

Even if we could achieve a table or more likely a spreadsheet of exterior conditions

conducive to constitutional judicial review, we would not be able to accurat

predict when such review would occur. A constitutional court capable of review

must still choose to exercise review for it to occur. So a number of studies presented

here pay attention to the background, training, ideologies, and career patterns of

judges that may then lead to judicial activism. Of course, there is a fairly long U.S.

tradition of studies linking party affiliation to judicial voting, but one not easily

applied to those many nations in which judicial voting is not revealed.

More recent, and clearly present in this volume, is concern for judicial "leader-

ship." Wliether active judicial review occurs at any given time for any given court

may depend in considerable part on whether one or more members of the court -

not necessarily its chief- marshals the court into judicial action and displays suffi- cient strategic sense to get away with it.

So the question is not only what can a given court get away with at a given time,

but what does it want to get away with. Obviously, part of the answer to the "want

to question lies in such internal factors as judicial ideology and leadership. Just as

obviously, part of what a court wants to do must be determined by what it is asked

to do. It is only recently that we have learned to pay great attention not only to the

judge but to the judge and company. Governments respond to lobbying. Courts

are lobbied by litigation. Litigation markets, the multiple, sometimes coordinated,

sometimes not, decisions of many persons to demand litigation, as well as the supply

of litigation opportunities provided by the courts, determines to some degree what

the courts produce. To some extent, supply will seek equilibrium with demand.

Courts capable of acting will to some degree act as they are asked to act.

Thus, as the Halliday contribution (Ch. 13 in this volume) reminds us, we have

learned that both the levels and directions of judicial intervention are determined to

some degree by the lawyers who are the traders in this market bringing together the

buyers and sellers of judicial product. We rather assume that the big institutional

players' - member states in constitutional federalisms, branches of government in

constitutionally divided "checks and balances" governments - will have adequate

representation. Insofar as constitutional review is, or could be, rights review, those

concerned with judicial review have become more and more concerned with the

The Mighty Problem Continues 385

size, shape, and relative vigor of a rights bar in the polity under study. Such a bar

will not only influence what a court wants to do, it may also provide or orchestrate

a level of support that enables a court to get away with what it wants to do.

THE NORMATIVE QUESTION: REVIEW AND DEMOCRACY

This volume is an empirical one. Its contributors address themselves primarily to

questions of what conditions - particularly those external to the courts, but also inter-

nal ones - determine when, where, and whether successful constitutional judicial

review will occur. However, it is impossible for either its writers or readers to entirely

avoid normative questions, particularly because democracy, typically defined by the

presence of effective party electoral competition, so often appears to be a key vari-

able in successful review equations. In a democracy, the laws are supposed to be

made by the people or their elected representatives. We know, of course, that in

reality a great deal of law even in democracies is made by nonelected administrators.

At least in theory, however, these administrators are under the control of elected

political executives and legislatures. To the extent that "independent" nonelected

fudges make law, a normative problem for democracy arises. Constitutional judicial

review is about the most dramatic and undeniable - although frequently denied -

form oflawmaking in which courts engage. At this point, we need hardly go through

the argument showing that constitutional review entails judicial vetoing of legisla-

tion and vetoing laws is as much an act of lawmaking as passing laws. It is now

commonplace in the United States for 5 judicial votes to sometimes outweigh 269

Congressional ones.

In the United States, hardly a year goes by without some new book on the compati-

bility of constitutional judicial review with democracy. In spite of endless, ingenious,

and sometime ingenuous attempts to achieve compatibility, it just can't be done. If

it could, the endless succession of books would stop. Comparative studies such as

those in this volume certainly enrich the discussion, but surely will not bring it to

an end. Indeed, the studies presented here underline an as-yet-under-considered

problem of review and democracy.

PROACTIVE AND REACTIVE REVIEW

One of many assorted responses to the democracy-review problem has been the

argument that courts do not proactively seek lawmaking opportunities. They can

only act when cases are brought to them, when lawmaking is thrust on them. Of

course, the argument is somewhat disingenuous. By their present decisions, courts

frequently signal what cases they are willing to hear next and/or that certain policy-

freighted legal positions have enough chance of winning next to justify the cost of

litigation. Judicial hints of what they may be willing to supply will certainly influence

what is demanded; that is what is litigated.

386 Martin Shapiro

Beyond particular supply offers, in many of the polities considered in this

courts have at least some control over the rules of standing that govern access

the courts. In some systems, too, the courts may use "political questions," "natii

security," forum non conveniens, or other doctrines to exercise discretion

they will and will not hear.

In some polities, constitutional provisions and political arrangements interact in

such a way - or interest groups are so various, energetic, and well-funded - that

nearly all currently relevant political issues will somehow be litigated. For instance.

in France, the constitutional provision that any sixty members of the

challenge any newly enacted statute in the Constitutional Council, combined with

a multiparty system that practically assures there will be at least sixty votes agaii

new law, results in nearly comprehensive and continuous surveillance of the whole

legislative agenda by the Constih.itional Council. In many industrialized, prosperous

states, the array of active interest groups is so great and the bar so prolific that

every government initiative is litigated. The courts may only do what they are asked

to do, but in some polities they are asked to do nearly everything.

This volume and other recent studies teach us, however, that there are polities

where constitutional courts do not even have to wait to be asked or in practice are

always asked about everything. Some constitutions provide that any citizen may

bring a constitutional claim to court about any action of government. Given human

nature, such provisions really mean that every policy issue will come to court and the

courts must of necessity pick and choose among the endless flood. Finally, in some

nations, constitutional courts are authorized sua sponte to take up any constitutional

issue they choose to identify. Quite obviously, provisions of these sorts are designed

to assure active judicial guardianship of the constitutional rights of those without the

resources to mount their own challenges to invasions of their rights. In the process,

however, they undercut the argument that in constitutional democracies, courts

only make law when they are forced to do so in order to resolve cases thrust on

them.

DECLARING THE CONSTITUTION UNCONSTITUTIONAL

Constitutional review is a peculiarly unlimited kind of judicial lawmaking, and thus

peculiarly difficult to reconcile with democracy. Courts are courts of law. Their

decisions are supposed to implement the law; that is, the statutes enacted by the

legislature. It is impossible, however, to implement any legal text without some

degree of interpretation of that text by the implementer, and thus some degree of

discretionary choice by the implementer as to what the text shall actually mean

in practice. So, judicial statutory interpretation inevitably and inescapably involves

judicial lawmaking. Such lawmaking, however, is not a great threat to democracy

because a democratically elected legislature can always amend a statute to "correct"

judicial errors of statutory interpretation. Constitutional interpretation by judges is

The Mighty Problem Continues 3§7

quite a different matter. Most of the world's constitutions are quite difficult to amend.

Indeed, if they were very easy to amend they would lose most of their virtue, which

is, after all, to limit government. So, unlike statutory interpretation, most judicial

constitutional interpretation - that is, lawmaking - is final, "uncorrectable" by the

elected or the electors, correctable only by further discretionary judicial action.

The comparative method employed in this volume even further complicates this

problem of constitutional judicial review and democracy. At first glance it might

seem oxymoronic to claim that a court may declare a constitutional amendment

unconstitutional. Nevertheless, most constitutional courts can declare an amend-

ment unconstitutional on procedural grounds; that is, that it was not enacted accord-

ing to the rules for enacting amendments laid down in the constitution itself. Notable

in this regard are the decisions of U.S. state supreme courts where state constitu-

tions contain a "single subject" provision. Those courts have fairly often ruled an

amendment invalid on the grounds that it treated more than one subject. Because

constitutional provisions are supposed to be rather general in character, nearly any

amendment might be considered to treat of more than one subject. Judicial single

subject decisions are likely to be highly discretionary.

Beyond the judicial capacity for procedural review of amendments, comparative

studies reveal instances of far greater judicial powers. Most notably in India (Mate,

Ch. 10 in this volume) and Germany, constitutional courts have declared that certain

constitutional provisions are so basic or fundamental that they may not be altered

by amendment. Such decisions rest either on judicial discernment of the intent

of the framers or arguments that some constitutional provisions are so inherent in

or vital to the constitution that altering them would destroy the very nature of the

constitution as a constitution. Indeed, the California State Constitution contains an

explicit provision forbidding amendments to its "fundamental" guarantees, but with

no list of what those guarantees are.

So we now encounter some constitutional courts that can even block "corrections'

to their constitutional lawmaking by more or less democratic amending processes.

(By the way, this is an appropriate place to point out that this volume reflects a new

scholarly vogue in comparative constitutional studies and thus a healthy corrective

to the previous nearly exclusive treatments of review in a U.S. context. This volume,

however, also reflects an overcorrection, that is the new studies have largely ignored

the rich comparative opportunities provided by the fifty U.S. state Supreme Courts.

State constitutional studies have largely been undertaken not by comparativists but

by liberal U.S. constitutional lawyers looking for havens from the new conservative

U.S. Supreme Court.)

JUDICIAL INDEPENDENCE

These phenomena of proactive constitutional courts and unconstitutional constitu-

tional amendments are only extreme examples of the central normative problem

388 Martin Shapiro

inherent in and often touched on in most of the comparative empirical studies ii

this volume. That is the problem of review and democracy.

The standard solution to this problem, or at least the solution most often

by defenders of review, lies along a route of "judicial independence" and rule of law

Under the flags of democracy, democratization, international human rights, nation

building, and/or economic development, judicial independence is touted around

the world by governments, international organizations, and nongovernmental

nizations (NGOs). Everyone is for it, for everyone. Surely constitutional judicial review must be a sham without it.

Alas, things are not as simple as they seem. Courts make law. Constitutional courts

often make big law, and the law they make is not easily invalidated by others. In

a democracy, the people or its elected representatives are supposed to make law.

If courts are truly independent, then they are lawmakers who are not politi<

accountable to the demos. Try flying that flag.

Put another way, courts are courts of law. Their job is to implement law. So

are agents of principals. One such principal - a very prominent one - is the statute

maker; that is, the legislature. An agent is supposed to be accountable to his/her

principal. Courts are supposed to be accountable to legislatures - in a democracy to

an elected, representative legislature. If courts are truly independent, they are not

accountable to democratic legislatures. Same flag, same problem.

So obviously we must not mean judicial independence when we say judicial

independence. Or we mean both judicial independence and judicial accountability

for judicial lawmaking. It may be quite logical to say we can't have both. The reality

of building politically viable and effective judicial institutions is that we want and

must have both. Unless courts are seen to be independent, they cannot effectively

perform any useful tasks, at least in democratic polities. This is merely the old and

true cliche that courts have neither the purse nor the sword. They depend heavily

on consent, and that consent depends in large part on the perception that they are

independent. On the other hand, in a democracy, no matter what adjectives such as

constitutional or deliberative or pluralist we add, no amount of lawyer talk is going

to persuade the demos that important lawmakers are not supposed to be accountable toil

Faced with this dilemma, we adopt one or more of a range of self-contradictory

but pragmatic compromises. They range from the partisan election of judges for

relatively short terms to life term appointments by political executives or by panels

whose membership represents a range of interests. Every possible mix and match of

a dozen different judicial selection methods is found somewhere in the world and in

this volume. Each of them represents some compromise between independence and

accountability. Even authoritarian states provide some masquerade of independence

because without it courts lose all institutional utility. Only a judiciary that was entirely

self-selecting by co-option with entirely independent funding would be without any

accountability. None such are reported in this volume.

The Mighty Problem Continues 389

If we concentrate on successful constitutional judicial review courts - that is, courts

whose vetoes of laws or other government actions are actually obeyed - it is clear that

this perceived independence from dictation by others is essential to their success.

However, in working through this volume, is it possible to discover any successful

constitutional review court in any more or less democratic society that is accountable

to no one? Is it possible to find any democratic polity in which constitutional judicial

review has not at some time or another been rendered problematic by the tensions

between independence and democratic accountability? For Americans, of course,

the bizarre ritual of Senate confirmation hearings provide a periodic theater of the

independence-accountability paradox, with nominees asked to show that they will

independently paddle in the mainstream. Most of the contributions to this volume touch in one way or another on the

strategic sense or leadership skills of constitutional courts or individual members of

those courts. A constant refrain is the limits or boundaries of maneuver imposed

on high courts by the constellations of political, economic, and social forces in

which they operate. The mightiest of the problems of constitutional judicial review

is the problem of achieving a successful balance between judicial assertions of

independence and demonstrations of accountability.

PRESENT AND FUTURE: ADMINISTRATIVE REVIEW

In a number of respects, this volume represents the currently most advanced stage

of judicial review studies. It is interdisciplinary and comparative. Moreover, it is

comparative not only in the sense of juxtaposing a variety of single country studies

all asking roughly the same questions, but comparative in the sense that some

contributions actually compare. Obviously, it moves beyond variations in the formal

textual provisions for review and beyond the courts themselves to the whole political

matrix in which they are imbedded. Not unnahirally, most studies of judicial review,

both United States and otherwise, have concentrated on the constitutional law that

constitutional judicial review courts have established. Thus, the concentration was

on legal doctrine. Indeed, in the normal course of law school and undergraduate

political science teaching, analysis of judicial review was a kind of addendum to

surveys of the substance of constitutional-law doctrines. If the question put is (as

it is here) not what did the court say, but how, where, when, and why courts get

away with saying it and achieving compliance with what they say, then doctrine

recedes and politics comes to the fore. So this volume remains centered on courts,

but courts in the matrix politics. In hvo interrelated respects, however, this volume

only hints at where judicial review studies may go next. Throughout my discussion

here, I have fairly steadily employed the expression "constitutional judicial review.

This is a good point at which to view judicial review more broadly.

One of the contributors to this volume, John Ferejohn, along with his coauthor

Bill Eskridge, has recently published a book entitled A Republic of Statutes: The

390 Martin Shapiro

New American Constitution.1 Its main argument is that in the United States, a seri,

of super-statutes has been enacted by Congress that provide a set of basic, g<

pervasive, and superior legal rules that are equivalent to constitutional provisi;

in generating judicial decisions of great political, economic, and social ii

Obvious examples are the Civil Rights Acts, the voting rights statutes, the Sherman Act, and the Administrative Procedures Act.

To those who have spent many years teaching U.S. constitutional law, what the

book has to say is obvious and has long been part of their everyday life as teachers.

(Most important books state what is obvious once the book has stated it.) If one

began teaching constitutional law in the 19605 or 19705, that law was proliferatii

at such a rate that it could barely be squeezed into a yearlong course. The half-

year devoted to civil rights and liberties particularly became a rat race. Then it

got worse. Increasingly over time, no relatively complete picture of civil rights and

liberties, and certainly none that would prepare young lawyers for practice, could be

presented without getting into the various antidiscrimination, voting, and campaign-

financing statutes. More and more litigation entangled constitutional and

rights and remedies. There just wasn't time. The law school result is new courses

in employment discrimination and the like to follow the basic constitutional law

course.

Teachers of administrative law have had a comparable experience. In the 19603

and 19703, the administrative law rules guiding judicial review of agency "informal"

rule making multiplied enormously. The course must have had five times as much

necessary content by 1990 as it had in 1950. Then agencies learned how to jump

over all the new procedural hurdles that the judges (seconded by Congress) had put

in their rule-making way. So now if you want to challenge an agency rule, often the

best bet is to challenge it not on procedural but substantive grounds. The rule is

alleged to be unlawful because it is not in accord with the statute that authorized

such a rule to be made. Thus, the typically one-semester administrative law course,

already overflowing with procedural nitpicking, needed to turn into a course on

statutory interpretation because so many cases turned on whether an agency rule

was or was not in accord with the text of the statute. Again, there just isn't enough

room and time to add a statutory interpretation course to the administrative law

course.

In calling this congeries of statutes a new constitution, Eskridge and Ferejohn

quite obviously are engaging in a marketing ploy. Constitution law is the queen of

the law school curriculum, with all those former Supreme Court clerks lined up

to teach it. It is typically the sole course on American law in the undergraduate

political science curriculum. If you can get all this statutory (and thus traditionally

less glamorous) law promoted into constitutional law then you can get it the attention

' William N. Eskridge Jr. and John Ferejohn, A Republic of Statues: The New American Constitution

(New Haven: Yale University Press, 2010).

The Mighty Problem Continues 39'

it deserves. It is really not worth fighting over whether the super-statutes are really

"constitutional" or constitution like or just important. A major portion of the law of

most modern states lies in rules enacted by administrative agencies under lawmaking

powers granted to them by statute. In most legal systems courts are given review

powers to determine whether the rule was in accord with the delegating statute.

In polities such as the United States, EU, and Israel the highest court is both a

constitutional and administrative court, and when the court strikes down a rule it

makes litde difference whether if did so on constitutional or statutory grounds. In

polities such as the United States and EU, where the constitutional text itself contains

norms for proper agency action, it may not even be clear whether the agency action

has been struck down on statutory or constitutional grounds.

As noted earlier, constitutional and statutory review may be in quite a different

position politically because judicial interpretation of statutes can relatively easily

be overturned by further legislative action; judicial constihjtional interpretations

can only be overturned by the difficult process of constitutional amendment. In

practice, however - in many legislatures - a given statute is enacted through the

coming together of a fragile coalition of the moment, which is very unlikely to

be capable of reforming much later to correct a judicial "misinterpretation" of

what it had wanted. Indeed, many countries have legislatures in which passing or

amending laws is so difficult that most real lawmaking is done by agencies. In those

countries, administrative judicial review may be far more politically empowering

than constitutional review both because it is exercised more frequently and it is little

subject to correction by the legislature. In some nations, administrative review may

be a decisive substitute for formal constitutional review, as, for instance, in UK courts

employing such notions as "natural justice." If we are concerned with constitutional

judicial review because it arms courts with considerable policy or lawmaking powers,

and often relatively independent ones, then we probably ought to take as our subject

of study "judicial review" not constitutional judicial review.

There is another, and quite pragmatic, reason to conflate constitutional and

administrative review, particularly for those basically concerned with review as an

instrument for furthering human rights. When a court protects rights by striking

down a statute or other government action as unconstitutional, it puts itself in the

position of directly opposing powerful political actors, of thwarting the will of the

people's representatives or of the authoritarian ruler(s). Such a position is at best

uncomfortable for the court and at worst suicidal. Where a court strikes down an

administrative decision on the grounds not that it is unconstitutional but merely that

it is unlawful, the court presents itself not as an opponent of the lawmaking regime

but as its loyal enforcement agent.

For most citizens of most countries, protection in their daily lives from arbitrary

actions by local officials is far more important than protection of their grand rights

of freedom of speech, voting, and so on. Getting a license to sell vegetables in

the market or getting a housing assignment may be far more important than being

392 Martin Shapiro

able to make a speech or cast a meaningful vote. So particularly in democratizii

or authoritarian regimes, administrative review can provide very important judici;

protections for individuals without dangerous judicial challenges to the

be. Indeed, as in contemporary China, a central authoritarian regime may welcome

judicial assistance in maintaining discipline over local officials.

There is, however, more to be said. In the contemporary world, even in the world

of Asian and African dictatorships, there is much conflation of law and rights. The

romance of rights is frequently expressed in the language of the rule of law or due

process of law. An administrative review court constantly waving the banner of rule of

law is in a position to slip at least a little - and maybe a lot - of rights proclamation -

and even real rights protection - into decisions that on their face only compel local

officials to do the bidding of their lawmaking masters. Administrative review as

well as constitutional review courts may become rights protectors. Constitutional

review courts must exercise some strategic sense if they are to be successful. One

strategic mode is to caste decisions asserting and protecting individual rights as based

in administrative law rather than constitutional law. Constitutional law decisions

invalidating government action are seen as ultimate and final short of constitutional

amendment. Administrative law decisions are more or less based in statutory law

that legislatures may change at will and are caste as judicial enforcement of the

law made by the legislature not as independent assertions of judicial constitutional

powers. Administrative law based judicial assertions of rights are little, humble

judicial review rather than big defiant review.

Europeans have long been in a good position to look at constitutional and admin-

istrative review together because the civil law tradition clumps administrative law

and constitutional law together as public law. American political science could

have done the same thing because it employed the same public law rubric, but

its long-held constitutional fetish kept it from paying much attention to any other

kind of law. U.S. law professors typically teach two areas of law, but until recently

the pairings were often arbitrary. Starting roughly hvo academic generations ago,

however, a substantial number of law professors began to couple constihitional and

administrative law. At about the same time, political scientists began to pay more

attention to law other than constitutional.

So perhaps now is the time to begin defining scholarly specializations and con-

structing courses in terms of judicial review rather than sticking constitutional review

in one place and administrative law review in another. Such a combination would

be good for rights and would respond to the need to spotlight super-statutes that

are largely judicially implemented by review of agency decision making. If we are

concerned fundamentally with how the judges "get away with it," we might want to

pay much more attention to the practices through which it is easiest for them to get

away with it.

Indeed conditions on the ground are beginning to compel comparativists to a

merged study of constitutional, other higher law and statutory review. European

The Mighty Problem Continues 393

national courts are now implementing a wide range of the mandates of the Euro-

pean Convention on Human Rights and the EU. This national court action is

sometimes seen as constitutional judicial review because international treaty law is

directly incorporated into the national constitution. Sometimes it is statutory review

of administrative action because the national legislature has enacted European

norms as national statutes. Often it is treated as review on the basis of European

Conventions or Union higher law, a law treated as subordinate to the national

constitution but superior to national statutes.

At the same time that this European law in national context is seen as higher or

constitutional law, in the context of the EU itself it may be merely statutory law, that

is norms contained in directives or regulations enacted through the EU legislative

process rather than derived directly from the language of the treaties that are the EU

Constitution. The several EU antidiscrimination directives are the kind of super-

statutes that Eskridge and Ferejohn talk about. In some EU member states, they are

constitutional mandates.

This European law is now implemented by regular, administrative, and consti-

tutional member-states courts. It is implemented by highest courts in the regular

and administrative court hierarchies as well as the typically sole constitutional court.

Increasingly, it is implemented by lower as well as higher courts and by courts whose

standing rules severely limit access to some and give others the broadest possible

access. Thus, the Kelsenian model of constitutional judicial review calling for a

single constitutional review court of very limited access, with judges appointed on

the basis of political considerations rather than pure professional merit and exclu-

sive jurisdiction over constitutional issues and no jurisdiction over purely statutory

matters - which was supposed to the continental model - is now in continental

shambles.

Certainly these momentous changes in review can be seen as driven by

popular religion of human rights.2 On the other hand, they may be seen as a

U.S.-like story of the European Court of Justice first achieving successful free-trade

federalist review supporting powerful economic actors, then the legitimacy recruited

in those endeavors being transferred to its rights review, that of the European Court

of Human Rights and even that of the courts of member states that had not previously

exercised much or any rights review.

All of the current member states of the EU are democracies. Most but not all of the

signatory states of the European Conventions on Human Rights are democracies,

and it may be that higher law review is not really successful in those that are not.

The EU and Convention are indeed highly fragmented in terms of political power.

The member states, even excluding the nondemocratic members of the Convey

tion, range from very fragmented to relatively unfragmented - unless you count all

See Alec Stone Sweet, A Europe of Rights (Oxford: Oxford University Press, 2009).

394 Martin Shapiro

democracies as fragmented. What is surely more fragmented is judicial review itself

as now exercised by many courts embedded in multiple judicial hierarchies.

Insurance" concerns are obviously at play, but of a number of different sorts. The

EU was formed in large part to ensure future peace among the states of Western

Europe. Both it and especially the Convention were formed to ensure against

return of Nazi-Fascist national regimes. A major motive of many Eastern European

states bent on joining the Convention and EU has been to ensure their newfound

independence from the successor to their former Soviet dominator. Neither the

Convention nor EU seems initially to have been a response of one political

in a particular member state to the dangers posed by the succession to office of a

rival party, but such considerations may have been at play among Eastern European

states with still-active Communist parties. Overall, the new European Convention

and EU generated judicial review, but surely this does not make the mighty problem

less mighty but does make reviewing judiciaries far mightier.

Indeed, a number of instances provided in this volume show the desirability,

indeed the inevitability, of treating administrative and constitutional review together

even when separate administrative and constitutional courts exist. As the chapter on

France clearly shows (Lasser, Ch. n in this volume), the new French constitutional

law - that is the incursion of EU and European Convention on Human Rights law -

has been implemented not only by the Constitutional Council but by the admin-

istrative court system and even the regular court system through judgments not of

the unconstitutionality but merely of the unlawfulness of government administrative

acts. In Chile, the question of whether the president has exceeded the legislative

power granted him by the Constitution is determined by whether the power to leg-

islate on a particular matter has been delegated to him by a statute enacted by the

legislature (see Scribner, Ch. 4 in this volume). Thus, the constitutional question

is a question of statutory interpretation identical to that raised throughout the world

in administrative courts (or courts of general jurisdiction) reviewing whether an

administrative agency rule or regulation is in accord with some statute purportedly

delegating rule-making authority to that agency. I leave it to the reader to note

the number of instances in this volume in which administrative review pops up

in one guise or another before being resubmerged in the volume's concern for

constitutional review.

OF DEMOCRACY, FRAGMENTATION, TAUTOLOGY, CIRCULARITY, TRAFFIC COPS AND CHICKENS

On the basis of this volume, "fragmentation" should be one of the favorite nom-

inees for conditions underlying successful judicial review. Democracy may well

be another, although a certain sort of successful review sometimes may appear in

authoritarian states. A number of perhaps insurmountable problems arise. First of

all, are fragmentation and democracy different things or the same thing? Nearly

The Mighty Problem Continues 395

any definition of democracy includes competitive elections. Competitive elections

almost necessarily demand two or more political parties, each with some chance of

winning something. They must be parties offering voters some real political choices.

If there are two or more relatively effective and relatively differing political parties,

isn't that in and of itself fragmentation? What if you have a two-party, competitive

electoral system in which, over time, each party controls all or at least a blocking

part of the government part of the time? What if both parties share the same basic

political, social, and economic values, differing only on a relatively narrow range

of means to those ends? Are you fragmented or not? If, as a number of contribu-

tors suggest, successful review depends on judges seizing opportunities presented by

fragmentation, is that different than saying democracy is a prerequisite of judicial

review? Are there unfragmented democracies that could be examined to test the

proposition: "no fragmentation - no successful judicial review." Or is there a single

democracy that was fragmented at some times and unfragmented at others, and in

which judicial review followed the same periodization?

Moreover, it is possible we are dealing with two kinds of fragmentation. In one,

parliament is sovereign but internally so fragmented that it cannot exercise its sup-

posedly exclusive lawmaking powers, so reviewing courts exercise those powers by

"interpreting" stagnant statutory texts. In each particular polity a nonjudicial concern

for rights may have led to successful review. Or successful review, either on rights or

federalism or division of powers issues, or at least a hint or a promise of such review

to come, may have engendered a rights movement which in turn engendered initial

or continuing successful rights review. In some instances review may have engen-

dered public urges to protect rights. In others public urges to protect rights may have

engendered review. Or, the Legislature - Executive at any given moment is suffi-

ciently unfragmented as to be productive, but the polity is sufficiently fragmented

that one party or coalition controls the government at some times and the other

at other times. Then the "insurance principals" kicks in, with each of the parties

agreeing to judicial review to protect it when the other gains control in the future.

Here again, however, fragmentation and democracy are hard to separate.

Division of powers raises some comparable problems. Unless there is a separate

and relatively independent judiciary, there cannot be successful judicial review.

If there is a separate judiciary, there is division of powers. Thus, wherever you

find successful review you will find a division of powers, but this is a matter of

definition, not causality. We will not have shown that division of powers necessarily

or sufficiently causes review. Indeed, sometimes we may be encountering the traffic

jam-traffic cop problem. It may not have been that division of powers caused judicial

review but that courts established a division oflawmaking powers between themselves

and other parts of government by the successful exercise of judicial review. Moreover,

they may even end such a division of powers by passively accepting all the law that

other branches make. Should we count as having division of powers only those

polities that have separate legislative and executive branches?

396 Martin Shapiro

Rights-creating or -enhancing review threatens similar causation problems his

lighted by Halliday's reminder that we should pay attention to lawyers (Ch. 13 in ^

volume). In some places at some times courts may be responding to rights concerns

among domestic elites or political classes; in others, to international-rights move-

ments. In some times and places, the judges' own decisions may encourage or even

engender cause lawyering that then moves courts to be more active about rights. In

each particular polity has a non-judicial concern for rights led to successful review or

has successful review, either on rights or federalism or divisions of powers issues, or

at least a hint and a promise of such review to come, engendered a rights movement

which in turn engendered successful rights review. Perhaps this is a chicken-and-

rather than a traffic cop problem.

In this volume, there is general global agreement that courts have become more

dangerous but remain the least dangerous branch. A number of our contributors refer

to a notion of a zone of tolerance," and many tell stories of judicial overreachii

followed by devastating reprisals. However, zone of tolerance comes down to "judges

can get away with what they can get away with." Such an approach is not only

tautological but does not distinguish judges in any way. All political actors can get

away with what they can get away with given the constellation of other political

forces of the given time and place. Zone of tolerance is simply, "Welcome to the Club."

If, of course, we could arrive at a relatively precise map of boundaries to the

zone - boundaries that were relatively fixed over time and across polities - the zone

could contribute to a causal model of successful review. The contributors to this

volume, however, depict a rather large atlas of zone boundaries as they have existed

at different times and places. So here we have a very fruitful set of overlays, but

have yet to construct the basic map. As a purely pragmatic matter, however, it is

undoubtedly a good idea to tell activist judges that their real powers may not be as

great as their formal powers and passive judges that their real powers may actually

sometimes be greater than their formal powers.

However various the boundaries, the zones seem to exist universally and suggest

one resolution, or at least amelioration of the tension between democracy and review;

that is, lawmaking by nonelected nonrepresentatives. Judicial review may not be self-

limiting, but appears to be auto-limited. Actual review - that is, review that seeks to

initiate policy or institutional change - seems to nearly always generate opposition.

Reviewing courts always appear to be sufficiently weak that their opposition will

become successful if the courts move too far and/or too fast. They are subject not

only to the checks and balances of other branches, but as many of the contributions to

this volume show, to the checks and balances of public sentiment. The dependence

on the purse and sword of others, the need to recruit more or less voluntary agreement

to judicial decrees, may mean that ultimately the benefits of the judicial review that is

actually carried out always exceeds the costs to democracy, because otherwise it will

be successfully reversed. (An interesting question is whether this auto-limitation rule

The Mighty Problem Continues 397

would apply in an Islamic state with democratically elected legislature - executive

but with courts constitutionally empowered to follow the Shari'a as the supreme law

of the land.)

This volume takes very long steps toward a comparative anatomy of judicial

review. It may even take some steps toward a kind of evolutionary biology of the

stages of judicial review, its speciation, and its sometimes extinction. For me at least,

it presents a truly daunting body of data on which to build a physiology of judicial

review - an account of what causes what. As the number of observed cases multiply,

it becomes harder and harder to come up with a single, or a list of single, necessary

and sufficient causes of review. The list of variables that in some combination

will cause review lengthens, and the number and complexity of possible winning

combinations or sequences of causes increases. No double helix appears to be on

the horizon. Path dependence rears its ugly head. We are able to tell more and

more increasingly sophisticated stories of the rise and fall, unrise, refall, and rerise of

successful judicial review in various places. A parsimonious causal model of judicial

review from which all of these developments could be deduced logically is still

beyond our grasp.